Supreme Court hears Act 1 arguments

Leslie Peacock is on hand for the Arkansas Supreme Court arguments in the case challenging the initiated act that prohibits adoptions and foster parenting by cohabiting couples. It was passed to keep children out of the homes of same-sex partners, who are prohibited from marriage in Arkansas, but also applies to heterosexual couples who are unmarried.

Leslie will have more. But the court has had many questions. The ACLU lawyer is explaining why — if cohabitation is an adverse issue in child custody cases — it is not proper to consider in these cases. Answer: adoption and foster parenting are about creating families, not looking after the best interest of children in the breakup of a marriage. It is, he argued, a "fundamental impingement" on the established right in Arkansas of sexual contact between people of the same sex to use that as a ground to bar them from adoption and foster parenting. It is irrational, too, to impose a categorical ban because testimony is that there's no child welfare benefit served by the ban.

There's no constitutional right to adopt, the ACLU lawyer concedes, but he said the Arkansas Constitution is violated when a person's sexual orientation makes someone ineligible to even be considered as an adoptive parent.

More from the hearing:

Should the court consider in its deliberation about Act 1, Justice Robert L. Brown asked ACLU attorney Garrard Beeney this morning, the fact that some 1,600 children are in the state’s custody for want of foster or adoptive parents? The voters, Brown said “spoke loud and clear” that they want to keep actively sexual cohabiting adults from fostering or adopting children when they passed Initiated Act 1. Shouldn't that be basis enough to allow the law to stand?

Beeney’s response: Act 1 is unconstitutional, and it is the right of the court to overturn the voters' will when it is unconstitutional.

Act 1 “assumes without basis,” and despite what DHS might find in its evaluations, that cohabiting couples are unfit. “There’s no evidence in the record that Act 1 serves any child welfare purpose,” he said.

But Justice Karen Baker raised the issue of how divorce courts look upon cohabitation. “Domestic relations courts have always frowned on cohabiting couples in custody cases. … How do we get around that?” Beeney: Cohabiting adults, who have been screened by the Department of Human Services, gone through training, had home visits and been found suitable to foster or adopt, can’t be compared to couples involved in divorce and custody issues. DHS, by placing children in foster or adoptive care, is “creating families,” not tearing them apart, Beeney said.

Much of the questioning in this morning’s arguments concerned whether Act 1, by prohibiting sexually active cohabiting adults from adopting or fostering children in Arkansas, unconstitutionally impinged on the established right of consenting adults to have sex in the privacy of the bedroom. And given that the state concedes that it knows there are cohabiting couples — read gay men and lesbian women — who are excellent parents, and that there are some 1,600 children in the state’s care awaiting foster care or adoption, why is it rational to make a blanket rule that would prohibit them from being considered?

Defenders of Act 1 said this: Those who want to adopt or foster children can do so, if they agree to give up their partner and sexual relations. The state needs the rule because it will save time and money by screening out applicants who, according to studies, are likely to be “more violent and less stable.”

“We concede that [Act 1] will screen out good people,” Deputy Attorney General Colin Jorgensen told the court. But, he added, the law is rational in that there is “loads of social science” to support the position cohabiting couples make worse parents than married couples (studies that the appellees take issue with).

Chief Justice Jim Hannah asked Jorgensen to explain. “Are we not penalizing” cohabiting couples by dismissing all of them, Hannah asked, and are children who might have gone to them better off in the state’s care? “You’re saying even though there are better options we’re not going to look at them?” Jorgensen replied that there are many factors that might make suitable parents ineligible, such as other children in the home, or size of home, or age of parents.

Jorgensen also maintained that DHS’ individualized screening has its flaws. “DHS does the best it can,” Jorgensen said, but the system is “inherently imperfect.” “People lie,” Jorgensen began to explain, but Corbin asked, “Only homosexuals lie?” “I’m not saying every homosexual would make a bad parent,” Jorgensen replied.

Justice Paul Danielson asked why, if the sexual act is the target, why Act 1 didn’t limit adoption and foster care to only married couples. Jorgensen said the act targets cohabitation, not sex, to which Justice Don Corbin interjected: “It’s about sex.”

Corbin told Jorgensen that his statements had him worried about the weaknesses in DHS’ evaluation process, to which Jorgensen responded, “I wish I hadn’t said that.”

Prior to passage of Act 1, Stephanie Huffman and Wendy Rickman of Conway, one of the plaintiff couples, adopted a hydrocephalic 2-year-old in foster care, and were the subject of a Times' article in 2009. They had begun the process to adopt another child when the act was passed.

After the hearing, Huffman said they hoped for a good ruling from the court and to be able to start the adoption process again with DHS. She added that it “was really nice” to hear the state concede the fact that homosexual couples could make good parents, a fact that an ACLU counsel called “inescapable.”

Frank Pennisi, a plaintiff with partner Matt Harrison, who have been named guardians of the children of Harrison’s cousin Meredith Scroggin and husband Benny in the Scroggins’ will, noted that under Act 1, which allows fostering or adopting by single people, he and Harrison could adopt if they broke up their "committed, 10-year relationship," lived alone and had “different sexual partners every night.”